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Further Reading

Just over a year ago, an ex-Uber engineer, Susan Fowler, stepped forward with a harrowing tale of sexual harassment at her former company. That revelation kicked off 2017’s annus horribilis, a year during which Uber saw itself bouncing from one crisis to the next. The saga ultimately resulted in cofounder Travis Kalanick being booted from the CEO job.

On Tuesday morning, Tony West, Uber’s chief legal officer, published a lengthy blog post proclaiming the end of mandatory arbitration for anyone (driver, rider, employee) associated with a claim of sexual assault or sexual harassment.

Uber is not the first major tech company to announce this change: Microsoft announced a similar move in December 2017.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations. Hearings have the trappings of a court hearing—arbitrators are often retired judges—except that the proceedings are wholly private. Even worse for consumers is that in the world of arbitration, there is no possibility of class-action claims. Arbitration proceedings are additionally nearly always shrouded from public view, so it is traditionally difficult to find out how many other people have been affected by the same issue.

"So moving forward, survivors will be free to choose to resolve their individual claims in the venue they prefer: in a mediation where they can choose confidentiality; in arbitration, where they can choose to maintain their privacy while pursuing their case; or in open court," West wrote. "Whatever they decide, they will be free to tell their story wherever and however they see fit."

Further Reading

Additionally, if someone is unfortunately subjected to sexual harassment or assault, no matter how they seek to adjudicate that claim (whether arbitration, mediation, or traditional litigation in a public court), Uber won’t force them to agree to stay quiet about their experience. "Whether to find closure, seek treatment, or become advocates for change themselves, survivors will be in control of whether to share their stories," he continued. "Enabling survivors to make this choice will help to end the culture of silence that surrounds sexual violence."

Finally, West said the company would "commit" to publishing a "safety transparency report" as a way to "turn the lights on" against this scourge.

"We’re working with experts in the field to develop a taxonomy to categorize the incidents that are reported to us," he concluded. "We hope to open-source this methodology so we can encourage others in the ridesharing, transportation and travel industries, both private and public, to join us in taking this step. We know that a project of this magnitude will take some time, but we pledge to keep you updated along the way."

Since taking over from Kalanick, new CEO Dara Khosrowshahi has tried to right the ship. Not long after he took the job late last year, he wrote his own blog post in which he proclaimed: "We do the right thing. Period."

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

Funny how a claim of what is literally a criminal activity can be forced into silent arbitration. Sad that companies are allowed to do this.

I presume this only covered civil cases and that criminal cases were still a possibility. Can you imagine how bad it would look if a company tried to block criminal cases. Then again this is Uber.......

Funny how a claim of what is literally a criminal activity can be forced into silent arbitration. Sad that companies are allowed to do this.

I presume this only covered civil cases and that criminal cases were still a possibility. Can you imagine how bad it would look if a company tried to block criminal cases. Then again this is Uber.......

A lot of people wouldn't know the difference between a civil and a criminal court case. Having a clause like that probably has prevented a whole lot of incidents from getting reported due to fear of reprisal on the part of the victim.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Quasi-legal means that it's not part of the judicial process. It's soft law, not hard law.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Quasi-legal means that it's not part of the judicial process. It's soft law, not hard law.

Hmmm. My understanding was always that it meant it was "pretending" to be part of the judicial process, which was never the impression that I got from arbitration in its own right. In my mind arbitration in the likes of Judge Judy and co were quasi-legal, but the "normal" arbitration process was less so.

Sounds like this is your first time on the internet. Please leave the wall-o-texts, excessive hyperbole, and tinfoil conspiracies in your journal.

This is a sock puppet for another user (please correct me if I'm wrong but his username is dudadew or some shit like that). He posts the same copy pasta on every single article involving rideshare or autonomous cars. Im guessing his main account got banned or something.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Quasi-legal means that it's not part of the judicial process. It's soft law, not hard law.

Hmmm. My understanding was always that it meant it was "pretending" to be part of the judicial process, which was never the impression that I got from arbitration in its own right. In my mind arbitration in the likes of Judge Judy and co were quasi-legal, but the "normal" arbitration process was less so.

But, you learn something new every day.

Binding arbitration is inherently inferior to normal civil procedure. Because it is a private process, there is no mandatory discovery (sharing of business records or other evidence), and there is no appeal. The odds would always be stacked in Uber's favor, because they have all the evidence, and in any case relevant to this discussion, would be the only party at risk of paying damages.

PS: There is also the selection of the mediator: if Uber makes the choice, they will favor a person/firm known to be sympathetic to business interests--which most arbitration firms are anyway, or they wouldn't last long in the market.

Signing away your rights to take someone to court should not be possible. I cannot fathom why this is tolerated.

SCALIA.

Scalia over-interpreting the Federal Arbitration Act, and entirely discarding both legislative intent and common fucking sense in order to extend a law, originally intended to enable contracting between companies with approximately equal bargaining power, to essentially involuntary contracts of adhesion.

Scalia shall be remembered as an affable old buffoon only when we reverse a number of catastrophically bad decisions made by SCOTUS majority at his direction.

Signing away your rights to take someone to court should not be possible. I cannot fathom why this is tolerated.

Many civilized counries have strict limits on signing away your rights because it's so easy for the more resourced party to negotiate in bad faith and bully them away.

In spite of the fact that the founders wrote (often) about the many forms of tyranny and injustice specifically involving wealth and influence, the "strict constructionist" judges see things differently.. They have interpreted constitutional law to allow almost any manner of abuse or provided endless exceptions.

- For a lot of years, it was cheaper to just pay settlements to people making accusations privately, so big corporations did that.

- When the previously private claims became literally the biggest news of the year, it wasn't cheaper anymore, so the big companies stopped caring. The burden of proof is higher in court, and the company can claim they're magnanimous in the process.

What would they do if you ignored arbitration and reported someone to the police for committing a crime? it's not the company's right to prevent the government from pursuing charges. Are they really going to sue you for exorcising your citizen rights?

What would they do if you ignored arbitration and reported someone to the police for committing a crime?

I believe the arbitration applied to civil cases only, where the plaintiff would attempt to seek monetary damages. Arbitration does not apply to criminal cases and to the best of my knowledge it is illegal to prevent anyone from reporting a crime to the police.

What would they do if you ignored arbitration and reported someone to the police for committing a crime?

I believe the arbitration applied to civil cases only, where the plaintiff would attempt to seek monetary damages. Arbitration does not apply to criminal cases and to the best of my knowledge it is illegal to prevent anyone from reporting a crime to the police.

Correct. It isn't about the crime, it is about any civil liabilities related to the commission of a crime. Uber, the company, isn't assaulting anyone. Unless you count assaulting your ideas of what a good business is.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Quasi-legal means that it's not part of the judicial process. It's soft law, not hard law.

Hmmm. My understanding was always that it meant it was "pretending" to be part of the judicial process, which was never the impression that I got from arbitration in its own right. In my mind arbitration in the likes of Judge Judy and co were quasi-legal, but the "normal" arbitration process was less so.

But, you learn something new every day.

Binding arbitration is inherently inferior to normal civil procedure. Because it is a private process, there is no mandatory discovery (sharing of business records or other evidence), and there is no appeal. The odds would always be stacked in Uber's favor, because they have all the evidence, and in any case relevant to this discussion, would be the only party at risk of paying damages.

PS: There is also the selection of the mediator: if Uber makes the choice, they will favor a person/firm known to be sympathetic to business interests--which most arbitration firms are anyway, or they wouldn't last long in the market.

Mediation is an entirely separate procedure from arbitration; and considerably less formal.

It's also not generally correct to say that arbitration is "inferior" to normal civil procedure. It's a complicated question. I can (and have) written lengthy memoranda of advice on the issue, but I get paid for that.

It's true that you're agreeing the rules contractually rather than going with the standard civil procedure rules. In most cases you short circuit that by agreeing to use the rules of one of the big arbitration organisations like the London Court of International Arbitration or the International Council for Commercial Arbitration, which generally mimic standard civil procedures, rather than attempting to roll your own (that's rarely a good idea unless you really know what you're doing).

Generally speaking arbitral awards are enforceable to the same extent as regular judicial orders, if not more so. One of the reasons for going the arbitration route is if the state in which an obligor is based or has the majority of its assets has no recognition of judgements given by courts in the jurisdiction of the governing law but is a party to New York Convention on Enforcement of Foreign Arbitral Awards. Arbitration is also useful if the counterparty is a state entity that could claim sovereign immunity from regular court actions.

None of this justifies the use of arbitration in consumer contracts. Clauses that attempt to do that are void in business to consumer contracts under EU consumer protection law. Facebook found that out when they tried to get the French courts to order a consumer to go to arbitration and were laughed out of court a couple of years ago (I still can't believe their lawyers allowed them to bring an action to enforce a contractual term which a first year law student could have told them was void).

Sir Spammer: The reason you get banned time and time again isn't because of what you say. Every single line that you post may, in fact, be absolute fact (although I'm pretty sure that some of it is hyperbole, and some is opinion). But the fact that you swoop in, dump it like a pile of feces on the forums, then seagull away without any intent to actually discuss WHAT THE ARTICLE AND THREAD ARE ABOUT make you a spammer and troll, and undeserving of having your screed stick around.

Sir Spammer: The reason you get banned time and time again isn't because of what you say. Every single line that you post may, in fact, be absolute fact (although I'm pretty sure that some of it is hyperbole, and some is opinion). But the fact that you swoop in, dump it like a pile of feces on the forums, then seagull away without any intent to actually discuss WHAT THE ARTICLE AND THREAD ARE ABOUT make you a spammer and troll, and undeserving of having your screed stick around.

At least staff is getting better at nukking the new accounts after people report them. Which is what you should all be doing: reporting them, not engaging with them! Don't quite them, don't refer to them in any way Just downvote, report, and move on.

Arbitration is a private, quasi-legal procedure originally designed to expedite disputes between corporations.

Arbitration is a perfectly legal method of dispute resolution. It's not a crowd of angry people shouting guilty at someone on a stage, or weighing someone against a duck on a set of scales.

However, it is not always used in good faith. Mandatory arbitration in employment or commercial agreements, imho, are rubbish. I highly encourage everybody to read those agreements and strike out any such paragraph, if at all possible. It's very unfortunate that is often not possible, due to the douchebaggery and general bigliness of some entities (cough ISPs cough).

Arbitration is heavily stacked in the corporations favor. It also blocks class-action suits which are often times the only way injured parties can afford to try and get some justice meted out to multi-billion dollar corporations.

If you examine the agreements you signed for your credit cards, telephone/cable/internet service, and lots of other things, you will find that you are bound to forced arbitration. The process is such that you have pretty well signed away any shred hope of a positive outcome. There is no other option, take it or leave it. This is standard business practice for all service companies in the USA. Perfectly legal.

Signing away your rights to take someone to court should not be possible. I cannot fathom why this is tolerated.

For some courts it is not tolerated. The 9th Circuit Court for example threw out aberration twice. When the first method was overturned by the Supreme Court they used the long held "shock the conscience" option to shut down the more abusive versions of it.

The fact you see Californian companies backing off on this shows they see the writing on the wall and don't really want to push the matter less it blow up in their face.

If you examine the agreements you signed for your credit cards, telephone/cable/internet service, and lots of other things, you will find that you are bound to forced arbitration. The process is such that you have pretty well signed away any shred hope of a positive outcome. There is no other option, take it or leave it. This is standard business practice for all service companies in the USA. Perfectly legal.

Read them carefully. A lot of them have procedures specifically for opting out of arbitration, although they usually have time limits for doing so for some injust reason.

- For a lot of years, it was cheaper to just pay settlements to people making accusations privately, so big corporations did that.

- When the previously private claims became literally the biggest news of the year, it wasn't cheaper anymore, so the big companies stopped caring. The burden of proof is higher in court, and the company can claim they're magnanimous in the process.

Pretty much this. Individuals don't always get bigger settlements in open court, because in open court they can't leverage "not spreading this all over the media" for more money. And most people would prefer more money to having their story splashed across the national media. Hell, most sane people would be willing to take a little less money so as to NOT be splashed across the national media.

There's nothing wrong with private arbitration. There's also nothing good about making it mandatory, but arbitration in and of itself has several advantages over court, mostly being speed, cost, and anonymity.

And in the same way you would get a lawyer if you wanted to run a case in court, you would also get a lawyer if you wanted to engage in said arbitration. No one would be getting "fleeced", at least not any more than an unrepresented party would in court.

Funny how a claim of what is literally a criminal activity can be forced into silent arbitration. Sad that companies are allowed to do this.

They couldn't force people to not make a criminal complaint. Arbitration vs civil court doesn't have a bearing on how the criminal justice system deals with the issue.

Then again, without evidence a sexual assault complaint devolves to a "he said-she said" issue. With that, it's much harder to get a ruling in favor of the plaintiff, as the standard is "beyond a reasonable doubt" vs "preponderance of the evidence" in a civil case.

And that said, the actual criminal case would go against the assailant, not Uber. The arbitration clause is just a way to reduce a company's liability, which is why they use them.

Funny how a claim of what is literally a criminal activity can be forced into silent arbitration. Sad that companies are allowed to do this.

They can't. Sad how people who know nothing on the subject feel the need to spread their ignorance.

Oh, really? So you're saying that judges will freely violate the Federal Arbitration Act and allow civil cases to proceed against a company with mandatory arbitration clauses? Or are you just saying that companies should not be held liable for criminal acts by their employees (or contractors, in Uber parlance)?